Over
Shirley Bittner's strenuous objection, the probate court
appointed her daughter, Stacey Bittner, as conservator of

Page 271

Shirley Bittner's estate. Stacey Bittner also opposed the
appointment. And so did the guardian ad litem appointed by
the probate court, as well as the court-appointed
psychologist who evaluated Shirley Bittner. The probate court
nevertheless determined that Shirley Bittner's memory
problems, arithmetic inadequacies, and mild cognitive
deficits rendered her unable to manage her property and
business affairs.

The
probate court made no finding that Shirley Bittner's
property would be wasted or dissipated absent [312 Mich.App.
230] appointment of a conservator and overlooked
consideration of the statutory directive that protective
orders encourage " maximum self-reliance and
independence" by restricting an individual's rights
only to the extent necessary to safeguard an individual's
estate. MCL 700.5407(1). The evidence demonstrates that
Shirley Bittner had proactively entered into a voluntary
arrangement that adequately protected her assets and allowed
her a meaningful measure of autonomy. We reverse.

I

Shirley
Bittner is 74 years old. For convenience and clarity, in the
balance of this opinion we will use her first name. We refer
to her three daughters, Suzanne Bittner-Korbus, Shirleen
Vencleave, and Stacey Bittner, as Suzanne, Shirleen, and
Stacey.

Shirley's
husband of more than fifty years passed away in October 2011.
Stanley Bittner had single-handedly managed the couple's
financial affairs. Newly widowed, Shirley developed serious
health problems that required surgery, medications, and a
temporary stay in a nursing home. She emerged from this
ordeal with some confusion. Shirley decided to entrust the
management of her finances to Suzanne, and granted Suzanne a
durable power of attorney. Shirley revised her living trust
to designate Suzanne as a co-trustee with authority to act
independently.

In June
2013, Shirley petitioned the probate court for an accounting
and a protective order. The petition averred that Suzanne had
diverted a considerable amount of Shirley's money to
herself, converted many of Shirley's accounts to joint
tenancies, and withdrew funds without Shirley's
authorization. Shirley revoked Suzanne's power of
attorney and co-trustee status, the [312 Mich.App. 231]
petition asserted, but Suzanne failed to return all the money
she misappropriated and refused to " undo the joint
tenancy creations . . . ." Shirley demanded an
accounting, restoration of her assets, and imposition of a
surcharge. In September 2013, the probate court entered a
temporary restraining order and authorized discovery.

Two
months later, Suzanne filed a petition seeking appointment of
a conservator for Shirley. The petition alleged that Shirley
was unable to manage her property and business affairs
effectively because of mental illness and mental deficiency.
In support of this allegation, Suzanne claimed that "
Shirley believes that all her money is gone, she is spending
time with her daughter Shirleen and her grandson who have
previously stolen from her, [and] she does not remember
things she did." Suzanne requested that a public
administrator act as conservator of Shirley's estate.

Shirley
responded to the petition by denying that she needed a
conservator and insisting that the petition was " simply
a last minute frivolous effort to distract from Petitioner
Suzanne Bittner-Korbus' illegal behavior[.]"
(Emphasis omitted.) Further, Shirley's answer maintained,
the petition lacked any " allegations that Shirley is
not managing her assets appropriately or

Page 272

that her management is adversely affected by some 'mental
illness.'"

The
probate court ordered that Shirley undergo an independent
medical examination with psychologist Terry Rudolph, Ph.D.,
and appointed attorney Helene Phillips as Shirley's
guardian ad litem. Attorney Phillips met with Shirley on
January 30, 2014. According to Phillips's report, Shirley
expressed a correct understanding of a conservatorship and
its attendant responsibilities, denied that she lacked the
" mental capacity [312 Mich.App. 232] to handle her
estate," and explained in detail the basis for her
belief that Suzanne had helped herself to some of
Shirley's assets. The report continued:

I went over the financial documents form with her and on the
most part she was able to provide me with the majority of her
financial information. Her daughter Stac[e]y corrected a few
accounts and added a few accounts. She informed me that she
was paying all her own bills and that at times her daughter
Stac[e]y was helping her.

Subsequently,
Phillips interviewed Stacey. Phillips concluded:

After my meeting with Shirley Bittner, conversation with
daughter Stac[e]y and conversations with both Suzanne's
attorney and Shirley's attorney I do not believe that
Shirley Bittner falls under the code's requirements of
being a person who needs protection and is not in need of a
conservator. I would recommend that the court not approve
this conservatorship. I have some minor concerns with Shirley
Bittner's full knowledge of her assets but I believe ...

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